My colleagues and I have written extensively about the unemployability benefits that are available through the VA, which are also known as TDIU or IU benefits, and the VA’s eligibility requirements for obtaining these benefits. Just a simple search on our blog will pull up the many posts we’ve written in this regard. My goal with this blog is to highlight a different, but also very important aspect of obtaining TDIU or IU benefits. That is, the vocational issues.
Specifically, 38 C.F.R. § 4.16 states in part, that if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, he or she may be assigned a TDIU rating. Of course there are other requirements for IU benefits, but even if those requirements are met, if a veteran is still able to secure or follow a substantially gainful occupation, then IU will be denied.
When evaluating unemployability, it is very important that the VA consider all of the service connected conditions, in combination, in determining whether or not the veteran can actually maintain a gainful occupation. But, the VA always messes this up. They normally look at each condition separately, but they very rarely look at the impact of the conditions when combined with each other.
This is where a vocational expert (VE) comes in and can save the day for the veteran. A vocational expert or vocational rehabilitation counselor is a professional who is trained to work with people with disabilities, both physical and mental, and assist them with finding suitable employment. They are normally well versed in the job market, and have studied employer practices to know what accommodations employers are willing to make in the workplace, and what accommodations employers are not willing to make.
The Social Security Administration uses VE’s all the time to determine whether or not Social Security claimants are disabled. But, the VA does not. The VA uses their doctors to give opinions about vocational issues, and whatever the doctor says, they run with it.
In our experience, we have found that the VA loves to say that veterans are still capable of doing “sedentary” work, which means a desk job. But, if a veteran has chronic back pain or knee pain or neuropathy, how realistic is it to think that he or she can sit for 6 hours in an 8 hour workday, which is what is required for a sedentary job. Or, the VA will say that the veteran can still work as long as he or she has a job working alone and not dealing with supervisors. However, as we all know, if you’re working in a competitive economy, you’re going to have to deal with a supervisor.
A VE will know how many absences per month employers are willing to allow, and how many unscheduled breaks are allowed. A VE will know that if you’re absent from work more than 3 days per month, no employer is going to reasonably allow you to keep your job.
The bottom line is, if you know you are unable to work, do not give up after the VA’s C&P exam comes back negative. Consider a vocational expert. The VE can give a well-reasoned and sensible opinion regarding whether or not you can still work on a gainful basis, when all factors are realistically considered.
